P2PfilesharingandthePhysicalVirtualdivide.docVIP

P2P file sharing and the Physical/Virtual divide Rebecca Giblin abstract Ten years have now passed since copyright owners first began suing developers of P2P file sharing software. In that time three major actions have been lengthily and expensively litigated in the US courts, and not a single P2P provider has ultimately emerged victorious. Yet by some estimates P2P file sharing may be grown to comprise up to 90% of all global internet usage, and today more file sharing applications are readily available than ever before. This paper argues that this phenomenon is a result of the inability of pre- and post-P2P secondary liability doctrines to fully recognize the unique characteristics that distinguish software code and software development from their physical world counterparts.  1: Software Worlds and Physical Worlds 4 Code Law 5 1. “Code is law” 5 2. Anti-regulatory code, or “when code isn’t law” 7 Secondary liability and the physical/virtual divide 9 1. The pre-P2P US secondary liability law 10 2. The physical/virtual divide 13 2: The Napster Lesson 22 1. The Napster technology 23 3. In the district court 25 4. In the Ninth Circuit 26 5. Implications 29 3: Exploiting the Physical/Virtual Divide 31 Aimster 31 1. The Aimster technology 32 6. In the district court 34 7. In the Seventh Circuit 34 8. Implications 39 9. Conclusion 42 Grokster Morpheus 42 1. Morpheus 45 10. Grokster (via FastTrack) 49 Grokster and Morpheus in the District Court 53 1. Contributory liability 54 2. Vicarious liability 55 Grokster and Morpheus in the Ninth Circuit 58 1. Contributory liability 58 2. Vicarious liability 61 3. Willful blindness 62 4. Implications 62 Conclusion 63 4: Inducement: The Targeted Response 64 1. A new theory of liability 64 11. What constitutes inducement? 67 12. The inducement doctrine’s physical world assumptions 70 5: Conclusion 74 Ten years have now passed since copyright owners first began suing developers of P2P file sharing software. In that t